some reflection on post-enlightenment qur'anic hermeneutics

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1428 Michigan State Law Review [Vol. 2006:1403glect. Because Islamic theological assertions of human equality are so explicit,many Muslim intellectuals and Islamic law scholars are quite complacentabout critically exploring the basis, content, and history of the ideaof equality. Many have literally taken the religion’s egalitarian assertionsfor granted. 98 Uncritical discussions of human equality in the commentariesof the canonical tafsir feed this complacency. This is a near-tragic state ofaffairs because issues arising out of Muslim misconceptions and misunderstandingsof human equality are at the heart of a number of controversiesaffecting the Islamic world today. 99equality principle emphasize dignity as the key substantive component of equality. See id.While I acknowledge that human dignity is an important aspect of the Islamic view of equality,I will argue that the Islamic conception is based firmly in a theocentric worldview andnot in a primarily humanitarian worldview, as many people have come to believe. In makingthis argument, I have benefited greatly from Louise Marlowe’s excellent study of the intellectualhistory of Islamic egalitarianism. MARLOWE, supra note 92. Professor Marlowe’sstudy appears to be the only important discussion of the topic.98. See, e.g., MASHOOD A. BADERIN, INTERNATIONAL HUMAN RIGHTS AND ISLAMICLAW (2003); ABUL ‘ALA MAWDUDI, HUMAN RIGHTS IN ISLAM (2d ed. 1995); SULTANHUSAYN TABANDAH, A MUSLIM COMMENTARY ON THE UNIVERSAL DECLARATION OF HUMANRIGHTS (F.J. Goulding trans., 1970); Abdul Aziz Said, Precept and Practice of HumanRights in Islam, UNIVERSAL HUMAN RIGHTS, Jan.-Mar. 1979, at 63; see also WilliamShepard, The Development of the Thought of Sayyid Qutb as Reflected in Earlier and LaterEditions of ‘Social Justice in Islam’, 32 DIE WELT DES ISLAMS 196, 221-22, 224, 227-28(1992) (translating paragraphs 13, 14, 21, 22, and 33 of Sayyid Qutb’s Social Justice in Islam).99. Some of the issues implicating contemporary concerns about Muslim conceptionsof equality are the racial programs and possible acts of genocide in Darfur, women’sfull participation in political and economic sectors of Muslim societies, particularly on theArabian Peninsula and in the Persian Gulf, gender equality in marriage and inheritance law,the Palestinian Question, the tremendous inequities suffered by imported guest workers,domestic servants, and other laborers on the Arabian Peninsula, and the treatment and participationof non-Muslim minorities in majority Muslim societies. For a discussion of theproblems in Darfur, see Report of the International Commission of Inquiry on Darfur to theUnited Nations Secretary-General (pursuant to Security Council Resolution 1564 of 18 September2004), Geneva, 25 Jan., 2004. With respect to the treatment of Muslim Africantribespersons in Darfur, the Commission found:Based on a thorough analysis of the information gathered in the course of its investigations,the Commission established that the Government of the Sudan and theJanjaweed are responsible for serious violations of international human rights andhumanitarian law amounting to crimes under international law. In particular, theCommission found that Government forces and militias conducted indiscriminateattacks, including killing of civilians, torture, enforced disappearances, destructionof villages, rape and other forms of sexual violence, pillaging and forced displacement,throughout Darfur. These acts were conducted on a widespread and systematicbasis, and therefore may amount to crimes against humanity. The extensivedestruction and displacement have resulted in a loss of livelihood and means ofsurvival for countless women, men and children. In addition to the large scale attacks,many people have been arrested and detained, and many have been held incommunicadofor prolonged periods and tortured. The vast majority of the victims
Special] Post-Enlightenment Qur’anic Hermeneutics 1429Thus, the meaning of equality in the core Islamic texts and the contemporaryrelevance of Muslim historical understandings of those texts isfundamentally a problem in Post-Enlightenment hermeneutics. Scholars ofIslam might not like to acknowledge this fact but I suggest that it is undeniableand that it is only through the methods of critical legal history, with theassistance of a clear and uncompromising hermeneutical analysis, that wecan obtain help in providing <strong>some</strong> relevant contemporary meaning to thetexts.The interpretation of equality is not a problem that is unique to Islam.Philosophers of law and legal scholars operating in the modern Westerntradition, unlike scholars in the Islamic law tradition, have devoted a greatdeal of critical attention to the theoretical basis, content, and history ofegalitarian ideas in Post-Enlightenment societies. 100 Indeed, it may verywell be that the problem of human equality is the central problem in contemporarypolitical life in these societies. Yet, even with all this attention,Western scholars still have great difficulty in making sense of their egalitariantraditions. As Professor George P. Fletcher noted, the modern claim thateveryone is entitled to equal treatment actually leads “a double life.” 101 Onthe one hand we never hear of any respectable argument against the coreassertion that equality should be a central value of any robust and maturepolitical system.Yet, at the same time, there is a pervasive and deeply rooted skepticismamong many scholars about the true meaning and viability of egalitarofall of these violations have been from the Fur, Zaghawa, Massalit, Jebel, Arangaand other so-called ‘African’ tribes.For a discussion of the problems of racial inequality, slavery, and slavery-like conditions inthe Islamic Middle East today, see Mohamed Mattar, Trafficking in Persons: EspeciallyWomen and Children in Countries of the Middle East: The Scope of the Problem and theAppropriate Legislative Responses, 26 FORDHAM INT’L L.J. 721 (2003); see also Khaled AliBeydoun, The Trafficking of Ethiopian Domestic Workers into Lebanon: NavigatingThrough a Novel Passage of the International Maid Trade, 24 BERKELEY J. INT’L L. 1009(2006); Dan Gatmaytan, Recent Developments: Death and the Maid: Work, Violence, and theFilipina in the International Labor Market, 20 HARV. WOMEN’S L.J. 229 (1997). On equalityfor women, see Samera Agha, Comparative Assessment of Women’s Rights, supra note 74;Perry S. Smith, Silent Witness: Discrimination Against Women in the Pakistani Law of Evidence,11 TUL. J. INT’L & COMP. L. 21 (2003); Ferris K. Nesheiwat, Honor Crimes in Jordan:Their Treatment Under Islamic and Jordanian Criminal Laws, 23 PENN. ST. INT’L L. REV.251 (2004); Leah Riggins, Note, Criminalizing Marital Rape in Indonesia, 24 B.C. THIRDWORLD L.J. 421 (2004). It is widely reported that between seventy and ninety percent of themarried women living in Pakistan are victims of domestic abuse and violence. See, e.g.,Human Rights Watch, Forms of Violence Against Women in Pakistan,http://www.hrw.org/campaigns/pakistan/forms.htm (last visited May 12, 2007).100. See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OFEQUALITY (2000); EQUALITY: SELECTED READINGS, supra note 96 (collecting essays);AMARTYA SEN, INEQUALITY REEXAMINED (1992).101. Fletcher, supra note 96, at 1608.
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